Citation Nr: 1101915
Decision Date: 01/18/11 Archive Date: 01/26/11
DOCKET NO. 09-00 991 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem,
North Carolina
THE ISSUES
1. Entitlement to service connection for residuals of a shell
fragment wound, to include a left shoulder scar.
2. Whether new and material evidence has been submitted to
reopen the claim of entitlement to service connection for
residuals of a stab wound to the left leg, to include a left leg
scar.
3. Entitlement to service connection for a sinus disorder.
4. Entitlement to service connection for bilateral hearing loss.
5. Entitlement to service connection for tinnitus.
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
S. Pflugner
INTRODUCTION
The Veteran served on active duty from May 2000 to May 2004.
This matter comes before the Board of Veterans' Appeals (Board)
on appeal from a January 2008 rating decision by the Department
of Veterans Affairs (VA) Regional Office in Phoenix, Arizona
(RO). During the pendency of this appeal, the Veteran's claims
file was transferred to the Regional Office in Winston-Salem,
North Carolina.
In May 2005, the Veteran submitted a claim of entitlement to
service connection for a left deltoid scar and a claim of
entitlement to service connection for a left calf scar, which
were denied in December 2005. Although he was provided notice of
this decision, the Veteran did not perfect an appeal thereof, and
it became final. See 38 U.S.C.A. § 7105(a) (West 2002);
38 C.F.R. §§ 20.201, 20.302 (2010). In October 2007, the Veteran
submitted claims of entitlement to service connection for
residuals of a left shoulder shrapnel wound, scar, and a claim of
entitlement to service connection for residuals of a left leg
knife wound, scar. Although the RO captioned, developed, and
evaluated these claims as original service connection claims, the
Board finds that the benefits sought are for the same disorders:
a left shoulder scar and a left leg scar. 38 C.F.R. § 4.13,
4.125 (2010); Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); see
also Velez v. Shinseki, 23 Vet. App. 199 (2009). Given that the
Board is granting the Veteran's claim of entitlement to service
connection for a left shoulder scar herein, re-captioning the
claim is unnecessary and the Veteran is not prejudiced thereby.
Due to a need for further development, the Board is remanding the
Veteran's claim of entitlement to service connection for a left
leg scar. In so doing, the Board is re-captioning the claim as
seen on the title page above and will address it as such
hereafter.
The issue of whether new and material evidence has been submitted
to reopen the claim of entitlement to service connection for a
left leg scar and the issues of entitlement to service connection
for a sinus disorder, bilateral hearing loss, and tinnitus, are
addressed in the remand portion of the decision below and are
remanded to the RO via the Appeals Management Center in
Washington, DC.
FINDING OF FACT
A left shoulder scar cannot be reasonably disassociated from the
Veteran's military service.
CONCLUSION OF LAW
The Veteran incurred a left shoulder scar during his active duty
service. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R.
§ 3.303 (2010).
REASONS AND BASES FOR FINDING AND CONCLUSION
Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has
certain statutory and regulatory duties to notify and assist
veterans. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106,
5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102,
3.156(a), 3.159, 3.326 (2010). Without deciding whether the
notice and development requirements of VCAA have been satisfied
in the present case, the Board is not precluded from adjudicating
the claim of entitlement to service connection for a left
shoulder scar, because the claim is granted. As such, this
decision poses no risk of prejudice to the Veteran. See, e.g.,
Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v.
Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg.
49,747 (1992).
Historically, the Veteran served on active duty service from May
2000 to May 2004. He served during Operation Iraqi Freedom and
Operation Enduring Freedom. According to his DD 214, his primary
specialty was Logistics, Embarkation, and Combat Service Support
Specialist. For his service, the Veteran was awarded a Combat
Action Ribbon. In October 2007, he submitted a claim of
entitlement to service connection for a left shoulder scar,
claimed as a residual of a shrapnel wound. The Veteran further
asserted that a piece of shrapnel remained in his left shoulder.
After his claim was denied in January 2008, the Veteran perfected
an appeal. This claim has been certified to the Board for
appellate review.
Service connection may be granted for disability due to a disease
or injury that was incurred in or aggravated by active service.
38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In addition, service
connection may be granted for any disease diagnosed after
separation, when all the evidence, including that pertinent to
service, establishes that the disease was incurred in service.
38 C.F.R. § 3.303(d).
In order to establish service connection for a claimed disorder,
the following must be shown: (1) medical evidence of a current
disability; (2) medical, or in certain circumstances, lay
evidence of inservice incurrence or aggravation of a disease or
injury; and (3) medical evidence of a nexus between the claimed
inservice disease or injury and the current disability. Hickson
v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12
Vet App. 341, 346 (1999).
In November 1999, the Veteran underwent an enlistment examination
that did not demonstrate a left shoulder scar. A longitudinal
review of the Veteran's service treatment records, including his
separation examination, did not reveal complaints of or treatment
for a left shoulder shrapnel wound or a left shoulder scar.
In October 2005, a VA examiner described a left shoulder scar as
follows: eight millimeters in diameter; circular; minimally
elevated; not deep; no instability; and not atrophic or shiny.
The examiner further found that there was no color difference and
it was not restrictive in any way. Moreover, there was no
inflammation, edema, or keloid formation, and it was not adherent
to the underlying tissue. The Veteran was reportedly unable to
explain the presence of the left deltoid scar, but asserted that
it itched. Ultimately, the diagnosis was "left deltoid area
scar, itches, not documented and cannot establish service
relation."
In June 2008, the Veteran underwent a physical and radiological
examination of his left shoulder. The physical examination
demonstrated symmetrical sensation to palpation over his deltoids
and trapezoids; symmetrical strength in his shoulders; full range
of motion at the shoulders; and symmetrical active range of
motion to abduction, internal rotation, external rotation, and
flexion. After a series of additional diagnostic tests, a
radiological examination showed no abnormalities except a slight
bossing of the humeral trochanter that may have contributed to
impingement in extreme abduction. Significantly, no reference
was made to shrapnel or other retained foreign body. The
diagnosis was possible impingement syndrome, otherwise a normal
shoulder x-rays and examination. The examiner did not relate the
possible impingement syndrome with the Veteran's left shoulder
shrapnel wound or a scar.
In November 2010, the Veteran testified at a Board hearing that
he received multiple shrapnel wounds on the left side of his body
as a result of a nearby explosion in approximately August 2001.
He testified that he extracted the shrapnel from several of the
wounds by himself. The Veteran then testified that his left
shoulder was "bleeding really bad," but that he never extracted
a piece of shrapnel from that wound. The Veteran asserted that
he had a bruise, that there was swelling, that the scar was "a
little darker," and that it was "welted up." He also
testified that he experienced pain if someone applied enough
pressure to the area and occasionally experienced pain upon
movement, but that he did not experience constant pain. The
Veteran denied a loss of strength and a limitation of motion with
respect to his left shoulder and left upper arm.
As discussed above, the Veteran served during Operation Iraqi
Freedom and Operation Enduring Freedom, and was awarded a Combat
Action Ribbon.
"In the case of any veteran who engaged in
combat with the enemy in active
service...during a period of war...[VA] shall
accept as sufficient proof of service-
connection of any disease or injury alleged
to have been incurred in or aggravated by
such service satisfactory lay or other
evidence of service incurrence or aggravation
of such injury or disease, if consistent with
the circumstances, conditions, or hardships
of such service, notwithstanding the fact
that there is no official record of such
incurrence or aggravation in such service,
and, to that end, shall resolve every
reasonable doubt in favor of the veteran."
38 U.S.C.A. § 1154(b) (West 2002).
The Veteran's service personnel records clearly demonstrate that
he engaged in combat. Further, the Board finds that the
Veteran's left shoulder scar, claimed as a residual of a shrapnel
wound, is consistent with the circumstances, conditions, or
hardships of his military service. Id. Consequently, his lay
statements as to incurring a left shoulder shrapnel wound during
his military service will be accepted as sufficient to support a
grant of service connection absent clear and convincing evidence
to the contrary. Id.
As a result of the October 2005 VA examination, the diagnosis was
left deltoid area scar. The examiner opined that, because the
scar was not documented in the Veteran's service treatment
records, an etiological relationship to his military service
could not be established. At the time of the examination, the
Veteran was unable to account for the presence of the scar.
Since then, the Veteran has asserted that he incurred the scar as
the result of a shrapnel wound. As such, the October 2005 VA
examiner's opinion was based on an incomplete factual background
and, thus, has no probative value. See Reonal v. Brown, 5 Vet.
App. 458, 460-61 (1993); Hadsell v. Brown, 4, Vet App. 208, 209
(1993). The Board finds that the October 2005 examiner's opinion
does not represent evidence contrary to the Veteran's lay
assertion that he incurred the left shoulder scar as a result of
inservice shrapnel wound. Further, the remaining evidence of
record is silent with respect to the etiology of the Veteran's
left shoulder scar. Consequently, based on the totality of the
evidence, and applying the doctrine of reasonable doubt, the
Board finds that the Veteran's left shoulder scar was incurred
during his military service. 38 U.S.C.A. § 1154(b); Gilbert v.
Derwinski, 1 Vet. App. 49 (1990). Accordingly, service
connection for a left shoulder scar is warranted.
ORDER
Service connection for a left shoulder scar is granted.
REMAND
A. Left Leg Scar
Pursuant to his original claim of entitlement to service
connection for a left leg scar, the Veteran underwent a VA
examination in October 2005. The examiner located and described
a left shoulder scar and a right knee scar; however; findings
regarding a left leg scar were not provided.
The Veteran testified at the November 2010 Board hearing that he
was participating in "home breaches" during his military
service when he was stabbed in the left leg during a fight with
an individual inside one of the breached homes. The Veteran
claimed that he was quickly treated by a field medic, but that he
did not receive stitches. He asserted that the only residual of
this injury was a scar that itched.
The Veteran's service treatment records and the post-service
treatment records did not demonstrate complaints of or treatment
for a left leg stab wound or residuals thereof. The Board finds
that a VA examination to ascertain the presence and severity of
any found residuals of a left leg stab wound and would necessary
in adjudicating the Veteran's claim. As such, a remanded is
warranted for the Veteran to undergo the appropriate VA
examination.
B. Sinus Disorder
A VA examination is necessary prior to final adjudication of a
claim when there is (1) competent evidence of a current
disability or persistent or recurrent symptoms of a disability,
(2) evidence establishing that an event, injury, or disease
occurred in service, or establishing certain diseases manifesting
during an applicable presumptive period for which the veteran
qualifies, and (3) an indication that the disability or
persistent or recurrent symptoms of a disability may be
associated with the veteran's service or with another service-
connected disability, but (4) there is insufficient competent
medical evidence on file for VA to make a decision on the claim.
38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i) (2010);
McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).
The evidence of record included a current diagnosis of allergic
rhinitis. A post-deployment questionnaire demonstrated that the
Veteran was "sometimes" exposed to smoke from burning trash or
feces, solvents, and paints. Moreover, he was "often" exposed
to vehicle or truck exhaust fumes. Further, during the November
2010 Board hearing, the Veteran testified that he began noticing
symptoms of a sinus disorder shortly after his service
separation. The Board finds that there is an indication that the
Veteran's current sinus disorder may be related to his active
duty service and/or an event therein. As such, the Board finds
that a remand for a VA examination is warranted. Id.
Additionally, in December 2007, the Veteran's service connection
claim for a sinus disorder was denied, in part, because he did
not submit any evidence showing a diagnosis of or treatment for a
sinus disorder after his military service. In September 2008,
after the Veteran had submitted his notice of disagreement, the
RO issued a statement of the case continuing the denial of his
claim. After the September 2008 statement of the case was
issued, pertinent VA treatment records were associated with the
Veteran's claims file. For example, a January 2009 treatment
report included a list of the Veteran's then current chronic
problems that include a diagnosis of allergic rhinitis. Despite
receiving this evidence prior to certification, the RO did not
issue a supplemental statement of the case.
The RO must issue a supplemental statement of the case when it
receives additional pertinent evidence after a statement of the
case has been issued, but before the claim has been certified on
appeal to the Board. 38 C.F.R. § 19.31 (2010). As such, the
Board finds that the a remand is required in order for the RO to
re-adjudicate the Veteran's claim, taking into consideration all
pertinent evidence of record, including the evidence that was
submitted after the September 2008 statement of the case was
issued.
B. Bilateral Hearing Loss
Pursuant to the Veteran's October 2007 service connection claim
for bilateral hearing loss, the Veteran underwent a VA
audiological examination in November 2007. Therein, the examiner
determined that the Veteran's hearing was within normal limits.
See 38 C.F.R. § 3.385 (2010). As such, the Veteran service
connection claim was denied due to no current diagnosis.
Hickson, 12 Vet. App. at 253; see also Pond, 12 Vet App. at 346.
In September 2008, after the Veteran had submitted his notice of
disagreement, the RO issued a statement of the case continuing
the denial of his claim. After the September 2008 statement of
the case was issued, pertinent VA treatment records were
associated with the Veteran's claims file. For example, the
Veteran underwent an audiological consultation in June 2008. As
such, the Board finds that the a remand is required in order for
the RO to re-adjudicate the Veteran's claim, taking into
consideration all pertinent evidence of record, including the
evidence that was submitted after the September 2008 statement of
the case was issued. 38 C.F.R. § 19.31.
Additionally, although the evidence of record demonstrated that
the Veteran underwent an audiological consultation in June 2008,
the findings, including an audiogram, were not associated with
the Veteran's claims file. See Pelegrini v. Principi, 18 Vet.
App. 112 (2004). As such, the RO must attempt to obtain the
findings associated with the June 2008 audiological consultation
and associated them with the Veteran's claims file.
C. Tinnitus
Finally, in October 2007, the Veteran submitted a claim of
entitlement to service connection for tinnitus. Pursuant to this
claim, the Veteran underwent a VA audiological examination in
November 2007. The Veteran reported that he was exposed to
gunfire, helicopter noise, mortar attacks, and artillery fire
during his active duty service without the benefit of hearing
protection. As a result of this examination, the diagnosis was
"subjective, severe, intermittent (occurring daily, lasting
minutes) tinnitus, bilaterally since service." The examiner
then noted that "there is no documentation of tinnitus in the
Veteran's [service medical records]; therefore, it is not likely
that the tinnitus had its origins in the service."
Generally, a VA examination report must contain clear conclusions
with supporting data and a reasoned medical explanation
connecting the two. Stefl v. Nicholson, 21 Vet. App. 120, 124
(2007) (holding that "a medical opinion . . . must support its
conclusion with an analysis that the Board can consider and weigh
against contrary opinions"). In November 2007, the examiner
rendered a negative etiological opinion, but did not incorporate
the Veteran's assertions of inservice acoustic trauma and reports
of tinnitus since his military service. See 38 U.S.C.A.
§ 1154(b). The examiner's opinion was based entirely on the
observation that the Veteran's service treatment record did not
demonstrate complaints of or treatment for tinnitus. As such,
the Board finds that the November 2007 VA examination is
inadequate for purposes of determined service connection. See
38 U.S.C.A. § 1113. Once VA undertakes the effort to provide an
examination, it must provide an adequate one or, at a minimum,
notify the Veteran why one will not or cannot be provided. Barr
v. Nicholson, 21 Vet. App. 303, 311 (2007). Consequently, the
Board finds that a remand is warranted in order to afford the
Veteran a VA audiological examination.
Further, following the September 2008 statement of the case
wherein the denial of the Veteran's service connection claim for
tinnitus was maintained, pertinent VA treatment records were
associated with the claims file. For example, the Veteran
underwent an audiological consultation in June 2008. As such,
the Board finds that the a remand is required in order for the RO
to re-adjudicate the Veteran's claim, taking into consideration
all pertinent evidence of record, including the evidence that was
submitted after the September 2008 statement of the case was
issued. 38 C.F.R. § 19.31.
Accordingly, the case is remanded for the following action:
1. The RO must review the December 2005
rating decision with respect to the issue of
entitlement to service connection for a left
leg scar. The RO must then send the Veteran
a letter providing him with a statement which
sets forth the element(s) of service
connection for which the evidence was found
insufficient, describes what evidence would
allow him to reopen his claim, and describes
what evidence would be necessary to
substantiate the element(s) required to
establish service connection if the claim was
to be reopened. Finally, the RO must also
provide the Veteran with notice, under 38
U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b), that
includes an explanation as to the information
or evidence needed to establish a disability
rating and effective date for the claim on
appeal. See Kent v. Nicholson, 20 Vet. App.
1 (2006).
2. The RO must contact the Veteran to
provide him an opportunity to identify all VA
and non-VA medical providers who treated him
for a left leg scar, sinus disorder,
bilateral hearing loss, and/or tinnitus since
his active service separation, if any, and
during the course of this appeal, if any.
The RO must then obtain copies of the related
treatment records that are not already in the
claims file. The RO must specifically
attempt to obtain the findings associated
with the June 2008 audiological consultation.
All attempts to secure this evidence must be
documented in the claims file by the RO. If,
after making reasonable efforts to obtain the
identified records, the RO is unable to
secure same, the RO must notify the Veteran
and (a) identify the specific records the RO
is unable to obtain; (b) briefly explain the
efforts that the RO made to obtain those
records; (c) describe any further action to
be taken by the RO with respect to the claim;
and (d) that he is ultimately responsible for
providing the evidence. The Veteran and his
representative must then be given an
opportunity to respond.
3. The Veteran must then be afforded an
appropriate VA examination to determine the
presence of any symptoms associated with a
left leg stab wound, including a scar. If
any are present, the examiner must opine as
to the etiology and severity thereof. The
claims folder must be provided to and
reviewed by the examiner. All pertinent
symptomatology and findings must be reported
in detail. Any indicated diagnostic tests
and studies must be accomplished. The
examiner must specifically opine as to the
relationship, if any, between any symptoms
found and the reported inservice stab wound.
A complete rationale for all opinions must be
provided. If the examiner cannot render an
opinion without resorting to speculation, the
examiner must thoroughly explain why an
opinion requires speculation. The
examination report must be typed.
4. The Veteran must be afforded an
appropriate VA examination to determine the
presence of a sinus disorder and, if present,
the etiology and severity thereof. The
claims folder must be provided to and
reviewed by the examiner. All pertinent
symptomatology and findings must be reported
in detail. Any indicated diagnostic tests
and studies must be accomplished. The
examiner must specifically opine as to the
relationship, if any, between the Veteran's
inservice exposure to smoke, exhaust fumes,
solvents, and paints, and any found sinus
disorder, to include allergic rhinitis. A
complete rationale for all opinions must be
provided. If the examiner cannot render an
opinion without resorting to speculation, the
examiner must thoroughly explain why an
opinion requires speculation. The
examination report must be typed.
5. The Veteran must be afforded an
appropriate VA examination to determine the
presence of bilateral hearing loss and/or
tinnitus and, if either or both present, the
etiology and severity thereof. The claims
folder must be provided to and reviewed by
the examiner. All pertinent symptomatology
and findings must be reported in detail. Any
indicated diagnostic tests and studies, to
include an audiogram, must be accomplished.
Specifically, the results of the audiological
evaluation must state, in numbers, the
findings of puretone decibel loss at 500,
1000, 2000, 3000, and 4000 Hertz, provide the
puretone threshold average, and must also
state the results of the word recognition
test, in percentages, using the Maryland CNC
test. After a review of the examination
findings and the entire evidence of record,
the examiner must render an opinion, in light
of the service and post service evidence of
record, as to whether any tinnitus and/or
current right or left ear hearing loss is
related to the Veteran's military service, or
to any incident therein, to include as due to
noise exposure. The Veteran's military
occupational specialties, the Veteran's
history of inservice and post-service noise
exposure, and any other pertinent clinical
findings of record, must be taken into
account. Further, the examiner must provide
a description of the functional impairment
caused by the Veteran's bilateral hearing
loss and/or tinnitus, if either or both are
found. A complete rationale for all opinions
must be provided. If the examiner cannot
render an opinion without resorting to
speculation, the examiner must thoroughly
explain why an opinion requires speculation.
The examination report must be typed.
6. The RO must notify the Veteran that it is
his responsibility to report for any
examination scheduled, and to cooperate in
the development of the claims. The
consequences for failure to report for a VA
examination without good cause may include
denial of the claim. 38 C.F.R. §§ 3.158,
3.655 (2010). In the event that the Veteran
does not report for any scheduled
examination, documentation must be obtained
and associated with the Veteran's claims file
that shows that notice scheduling the
examination was sent to the last known
address. Documentation must be also be
obtained and associated with the Veteran's
claims file demonstrating any notice that was
sent was returned as undeliverable.
7. After completing the above actions, and
any other development as may be indicated by
any response received as a consequence of the
actions taken in the paragraphs above, the
claims must be re-adjudicated. If the claims
remain denied, a supplemental statement of
the case must be provided to the Veteran and
his representative. After the Veteran has
had an adequate opportunity to respond, the
appeal must be returned to the Board for
further appellate review.
No action is required by the Veteran until he receives further
notice; however, the Veteran has the right to submit additional
evidence and argument on the matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
______________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs